(Internal quotations and citations omitted).Ī big part of complex commercial litigation is giving, receiving and evaluating evidence (this is called 'discovery'). Accordingly, the Defendants' Demand for a Verified Bill of Particulars is vacated. The Defendants may not avoid the limitation on the number of interrogatories by simply calling it a demand for a bill of particulars. However, such requests are improper in a bill of particulars and must be sought in the form of interrogatories pursuant to Rule 11-a of the Commercial Division Rules or by another appropriate disclosure device. Significantly, the majority of the requests vaguely ask the Plaintiff to 'state the basis for the allegations' for nearly every paragraph of the 95 paragraph, highly detailed complaint (Requests 13-75). To wit, the Defendants' Demand for a Verified Bill of Particulars seeks the identification of witnesses with knowledge of relevant information (requests 1 and 2), and a computation of damages (request 11). Here, the Defendants' Demand for a Verified Bill of Particulars, which contains 75 paragraphs, excluding subparts, seeks details more appropriately developed at a deposition and not consonant with the purposes of a bill of particulars. In this case, no such expansion was requested or provided. In addition, the commercial division rules limit interrogatories to 25, including subparts, unless the court provides a different limit in the preliminary conference order. When a bill of particulars is replete with palpably improper evidentiary requests, the proper remedy is vacatur of the bill of particulars. In other words, the purpose of the bill of particulars is to amplify the pleading, limit the proof, and prevent surprise at trial, but it is not a vehicle to obtain evidentiary material. In fact, although the drafters of the CPLR also recommended its abolishment in conjunction with the expansion of the disclosure statutes now found in article 31, the Legislature retained the bill of particulars, not as a disclosure device, but in its traditional and limited role as a means of amplifying a pleading. The bill of particulars has been abolished in many jurisdictions, including in the federal courts, as broader disclosure statutes have rendered them superfluous. 32944(U), vacating a demand for a bill of particulars because it was being used as a discovery device, explaining: On September 8, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Orentreich v.

Beavers, 170 AD2d 1045).' (Marsala at 690.Categories Commercial, Discovery/Disclosure Demand for a Bill of Particulars Vacated Because it Was Being Used as a Discovery Device Since article 16 need not be pleaded as an affirmative defense, 'it follows that the respondents need not provide a bill of particulars with regard to CPLR article 16 (contra, Ryan v. Weinraub (208 AD2d 689 ), the Second Department majority held that whenever a plaintiff sues multiple defendants, the article 16 apportionment defense will automatically apply by operation of CPLR 1601 (1), unless the plaintiff can prove that an exception is applicable.Ĭonsequently, the Second Department reasons, in those cases in which article 16 apportionment automatically applies, no affirmative defense need be pleaded. The Ryan court observed that 'it is well settled that a party must provide a bill of particulars on matters on which he bears the burden of proof (see, Siegel, NY Prac 238, at 292).' (Id.)

at 1046.)ĬPLR 1603 provides in part that a 'party asserting limited liability pursuant to this article shall have the burden of proving by a preponderance of the evidence its equitable share of the total liability.' The Fourth Department held that 'defendants must provide a responsive bill of particulars with respect to their third affirmative defenses because they bear the burden of proof under CPLR 1603, as the parties seeking to limit their liability.' (Id. Beavers (170 AD2d 1045 ), the Fourth Department precluded defendants from presenting proof with respect to their article 16 apportionment defense unless defendants served a responsive bill of particulars. Does a Defendant Have to Provide a Bill of Particulars on Matters on Which He Bears the Burden of Proof ?In Ryan v.

Sample bill of particulars